State v. Bishop , 2021 Ohio 4168 ( 2021 )


Menu:
  • [Cite as State v. Bishop, 
    2021-Ohio-4168
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                   :
    Plaintiff-Appellee,             :
    No. 110423
    v.                      :
    RICKY BISHOP,                                    :
    Defendant-Appellant.            :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: REVERSED AND REMANDED
    RELEASED AND JOURNALIZED: November 24, 2021
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-18-630164-A
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
    and Warren W. Griffin, Assistant Prosecuting Attorney, for
    appellee.
    Cullen Sweeney, Cuyahoga County Public Defender, and Aaron
    T. Baker, Assistant Public Defender, for appellant.
    MICHELLE J. SHEEHAN, J.:
    Defendant-appellant Ricky Bishop appeals the trial court’s denial of
    his motion to vacate the March 11, 2021 nunc pro tunc entry that corrected his
    sentencing entry. Because Bishop had completed the prison sentence imposed by
    the trial court prior to the court correcting the sentencing entry, the trial court erred
    denying the motion to vacate. Accordingly, we reverse the judgment of the trial
    court.
    On February 21, 2019, Bishop was convicted of one count of
    aggravated assault in violation of R.C. 2903.12(A)(1) and was sentenced to a 5-year
    term of community control sanctions. The trial court notified Bishop that he could
    serve an 18-month prison sentence if he violated the terms of his community control
    sanctions. Bishop’s case was transferred to the Cuyahoga County Veterans Court
    docket for supervision. Thereafter, the trial court held several community control
    violation hearings between April 25, 2019, and September 19, 2019, in which the
    trial court ordered additional sanctions, including residential community control
    sanctions.
    On April 28, 2020, the trial court issued a capias for Bishop’s arrest.
    Bishop was arrested January 14, 2021, and on January 19, 2021, the trial court held
    a violation hearing. The trial court found Bishop to be in violation of his community
    control sanctions and ordered the previously imposed 18-month prison sentence
    into execution. The January 19, 2021 journal entry filed by the trial court reads in
    pertinent part:
    The court finds that prison is consistent with the purpose of
    R.C. 2929.11. Defendant terminated unsuccessfully from term of
    community control sanctions and Veterans Treatment Court. It is
    therefore, ordered that said defendant, Ricky Bishop, is now
    sentenced to the Lorain Correctional Institution for a term of 8
    month(s). Defendant to receive 179 jail time credit for time at the
    CBCF. Defendant to receive 131 days jail time credit for time at county
    jail. Defendant to receive an aggregate total of 310 days of jail time
    credit and any time accrued while awaiting transport to Lorain
    Correctional Institution.
    (Emphasis added.)
    On February 24, 2021, the Ohio Department of Rehabilitation and
    Correction sent a letter to the trial court indicating that Bishop was admitted to their
    custody, the 8-month sentence reflected in the January 19, 2021 sentencing journal
    entry was served in full, and Bishop was to be released from custody on February 24,
    2021. On that same date, the trial court filed a nunc pro tunc entry to replace the
    January 19, 2021 sentencing journal entry. However, that nunc pro tunc entry
    iterated the trial court imposed an 8-month prison sentence on January 19, 2021.
    On March 11, 2021, the trial court issued a second nunc pro tunc entry
    regarding the sentence. The March 11, 2021 entry reads in pertinent part:
    The court finds that prison is consistent with the purpose of
    R.C. 2929.11. Defendant terminated unsuccessfully from term of
    community control sanctions and Veterans Treatment Court. It is
    therefore, ordered that said defendant, Ricky Bishop, is now
    sentenced to the Lorain Correctional Institution for a term of 18
    month(s). Defendant to receive 179 jail time credit for time at the
    CBCF. Defendant to receive 131 days jail time credit for time at county
    jail. Defendant to receive an aggregate total of 310 days of jail time
    credit and any time accrued while awaiting transport to Lorain
    Correctional Institution.
    (Emphasis added.)
    On March 24, 2011, Bishop filed a motion to vacate the March 11, 2021
    nunc pro tunc entry arguing that he served the 8-month prison sentence imposed
    by the trial court’s January 19, 2021 sentencing entry in full on February 24, 2021,
    and that the trial court could not increase the sentence by means of a nunc pro tunc
    entry. The trial court obtained a transcript of the January 19, 2021 hearing, and on
    April 11, 2021, denied Bishop’s motion, but suspended further execution of the
    prison sentence pending any appeal. Bishop appeals the trial court’s denial of his
    motion to vacate the March 11, 2021 nunc pro tunc entry.
    Bishop raises one assignment of error, which reads:
    The trial court erred in issuing its March 11, 2021 nunc pro tunc
    journal entry, because it violated Mr. Bishop’s due process interest in
    the finality of his sentence under U.S. Const. Amends. V, XIV, and
    Ohio Const. Art. I, Sec. 10.
    Bishop argues that because the trial court’s January 19, 2021 journal
    entry imposed an 8-month term of incarceration that he served in full prior to
    March 11, 2021, the trial court could not increase his sentence through a nunc pro
    tunc order. The state argues that pursuant to Crim.R. 36, the trial court could
    correct the January 19, 2021 sentencing entry at any time, even after Bishop had
    served the sentence imposed by the original entry in full.
    It is well settled law that a court speaks only through its journal. State
    v. Steinke, 8th Dist. Cuyahoga No. 81785, 
    2003-Ohio-3527
    , ¶ 45, citing Gaskins v.
    Shiplevy, 
    76 Ohio St. 3d 380
    , 382, 
    667 N.E.2d 1194
     (1996). It is also well settled law
    that pursuant to Crim.R. 36, a court may correct clerical errors in its journal at any
    time. State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 
    2020-Ohio-1629
    , ¶ 7.
    However, at issue in this case is not the court’s ability to issue a nunc pro tunc order
    to reflect that it imposed an 18-month prison sentence on January 19, 2021, but
    rather whether the trial court had the ability to issue that entry after Bishop had fully
    served the 8-month prison sentence imposed in the January 19, 2021 journal entry.
    In State v. Holdcroft, 
    137 Ohio St.3d 526
    , 
    2013-Ohio-5014
    , 
    1 N.E.3d 382
    ,1 the Ohio Supreme Court was asked to consider whether a sentencing court
    could impose postrelease control sanctions upon a defendant after the defendant
    had fully served his prison sentence. The Ohio Supreme Court noted it “consistently
    and repeatedly held that a trial court loses jurisdiction to resentence a defendant for
    the purpose of imposing postrelease control once the defendant has served his entire
    sentence of incarceration.” Id. at ¶ 5, citing Hernandez v. Kelly, 
    108 Ohio St.3d 395
    ,
    
    2006-Ohio-126
    , 
    844 N.E.2d 301
    , ¶ 32; State v. Bloomer, 
    122 Ohio St.3d 200
    , 2009-
    Ohio-2462, 
    909 N.E.2d 1254
    , ¶ 70; State v. Simpkins, 
    117 Ohio St.3d 420
    , 2008-
    Ohio-1197, 
    884 N.E.2d 568
    , State v. Bezak, 
    114 Ohio St.3d 94
    , 
    2007-Ohio-3250
    , 
    868 N.E.2d 961
    , ¶ 18. The Holdcroft Court found that
    [n]either this court’s jurisprudence nor Ohio’s criminal-sentencing
    statutes allow a trial court to resentence a defendant for an offense
    when the defendant has already completed the prison sanction for
    that offense.
    
    Id.
     at ¶ 19
    1We recognize that Holdcroft has been abrogated on other grounds by State v.
    Hudson, 
    161 Ohio St.3d 166
    , 
    2020-Ohio-3849
    , 
    161 N.E.3d 608
    , and State v. Harper,
    
    160 Ohio St.3d 480
    , 
    2020-Ohio-2913
    , 
    159 N.E.3d 248
    .
    This court recently recognized the validity of that holding regarding
    finality in State v. Smith, 8th Dist. Cuyahoga No. 109963, 
    2021-Ohio-3099
    , ¶ 20,
    stating that “[t]he Ohio Supreme Court has explained that when a defendant has
    fully served his or her sentence, the defendant enjoys an expectation of finality,
    which prevents further modification.”
    Further, neither the state nor Bishop filed an appeal of the January
    19, 2021 entry in which the court imposed the 8-month sentence. We note that the
    importance of finality in criminal sentences has been reinforced by the Ohio
    Supreme Court’s recent holdings in State v. Hudson, 
    161 Ohio St.3d 166
    , 2020-
    Ohio-3849, 
    161 N.E.3d 608
    , and State v. Harper, 
    160 Ohio St.3d 480
    , 2020-Ohio-
    2913, 
    159 N.E.3d 248
    , in which postconviction challenges to an error in the
    pronouncement of sentence that could have been raised on direct appeal are now
    subject to being barred by the doctrine of res judicata. Hudson, 
    2020-Ohio-3849
    , ¶
    16, Harper, 
    2020-Ohio-2913
    , ¶ 41. And we recognize that even unlawful sentences
    can become final if not imposed in accordance with law. See State v. Henderson,
    
    161 Ohio St.3d 285
    , 
    2020-Ohio-4784
    , 
    162 N.E.3d 776
    .
    In this case, it is not contested that Bishop fully served the 8-month
    prison sentence reflected in the January 19, 2021 journal entry before the trial court
    attempted to correct its error on March 11, 2021. Because Bishop’s sentence was
    fully served by March 11, 2021, the trial court was without jurisdiction to modify the
    sentence. Accordingly, the trial court erred by denying Bishop’s motion to vacate
    the nunc pro tunc entry. We sustain Bishop’s sole assignment of error.
    Judgment reversed, and case remanded to the trial court with
    instructions to vacate the March 11, 2021 nunc pro tunc entry.
    It is ordered that appellant recover of appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the
    common pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    ____________________________
    MICHELLE J. SHEEHAN, JUDGE
    KATHLEEN ANN KEOUGH, P.J., and
    EMANUELLA D. GROVES, J., CONCUR
    

Document Info

Docket Number: 110423

Citation Numbers: 2021 Ohio 4168

Judges: Sheehan

Filed Date: 11/24/2021

Precedential Status: Precedential

Modified Date: 11/24/2021